As always, I appreciate Eugene's thoughtfulness and thoroughness. With regard to taxes, do we have a level of generality plus fear of strategic misrepresentation problem. That is, why is it such a big deal if the Amish alone don't pay social security taxes. We could clearly accommodate the absence of the relevant funds. It's only if we ask the what if everybody did it that the state's interest in collecting the marginal dollar is "compelling." But, of course, it would be hard, pace Yoder, to limit the accommodation to the few Amish, and, on top of that, we justifiably fear all the bad faith claims.
Eugene is, of course, at one level absolutely right in dismissing my concern about "absurdity." That being said, I do find it frustrating, unless one accepts a type of post-modernist relativism like, say, Paul Feyerabend's, that we can and do distinguish all the time between tenable and absurd beliefs. I will happily agree that many Jewish laws, especially relating to food, are absurd. I ultimately don't know what we should say if someone believes she's getting messages from a Venusian spaceship. Sandy Sent from my iPhone On Sep 5, 2015, at 7:19 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 1. Isn’t there an orthodox answer for this, and one that has been orthodox for 30 years? Religious pacifists certainly are substantially burdened by paying taxes for war, if they believe that paying such taxes is religiously improper; same for others who have similar objections to other taxes. The Court accepts that this is a substantial burden. See, e.g., United States v. Lee (1982): “Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.” But the burden is seen as constitutional, because granting exemptions would unduly interfere with the compelling interest in raising taxes, see Lee. And this analysis has been applied time and again by courts, and I think quite sensibly. Where’s the broccoli? 2. Beyond this, how can our judgment about absurdity of religious claims be relevant? Many people might think it’s absurd to think that God cares about whether eat pork or lobster, whether we take a particular 24 hours a week off, whether we cut our hair, or whether we wear a hat. They might think it’s absurd to object to mixing dairy with fowl or meat – and even more absurd to have detailed rules about how many hours after eating meat you can eat dairy products. They might think it’s absurd to conclude that, not only can’t you work on a particular day of the week, you can’t use electricity (at least in certain ways) or carry things in your pockets outdoors unless there’s a very long string around the area in which you are doing the carrying. Indeed, many people believe it is absurd to believe that some book is holy scripture, or that God not only exists but is benevolent. Religious freedom law, it seems to me, is all about protecting beliefs that many view as absurd. 3. And further beyond, we’re talking here about complicity – an area of responsibility that our own legal system finds it very hard to draw lines in. The rules of complicity under American law are notoriously bizarre and fractured. Consider mens rea. If you help someone with the purpose of helping him commit his crimes, you’re guilty of the crime itself as an accomplice. If you help someone, knowing that your actions are helping him commit the crime, you aren’t an accomplice under the laws of most states — but you are under the laws of some states. And in some states, you are guilty of the lesser crime of “criminal facilitation.” And the rules differ for different kinds of conduct. For instance, informing a particular person how to make a bomb, knowing that he plans to make a bomb (even if you have no specific purpose to help him do so), is a crime under federal law. Likewise, knowingly providing assistance to a foreign terrorist organization is a crime even if you don’t have the purpose of advancing the organization’s terrorist goals, but are just trying to promote the organization’s supposedly humanitarian wing or are trying to teach the organization’s members about international law. Likewise, there is much uncertainty about how close the connection between the allegedly complicit act and the wrongful underlying act should be to count as complicity. Knowing distribution and even possession of child pornography is banned, chiefly on the grounds that such distribution and possession tend to cause the making of child pornography by creating and sustaining a market for such material. The causal connection between possession of child pornography and the production of child pornography is quite indirect (though real). But the law criminalizes possession nonetheless, based on that connection. And that’s just the criminal law. If you know or have reason to know that your actions are materially helping someone infringe copyright, you are guilty of contributory copyright infringement. And in some situations, you can be vicariously liable for copyright infringement even if you weren’t negligent — for instance, if a band performs a song in a bar that you own and it turns out that (despite their assurances to the contrary) they weren’t licensed by the owner of the copyright in the song. Beyond copyright law, people can be liable for negligently facilitating another’s criminal conduct. Landlords can have their property seized if they negligently allowed it to be used for drug transactions. And the list could go on. What about causation? Well, it turns out that causation is generally not required for complicity liability under criminal law – but not just actual cause but proximate cause is required for complicity liability under tort law, with “proximate cause” being famously complicated, especially when aiding third parties’ voluntary actions is involved. Don’t get me started on the various rules related to this under various states’ tort laws. That’s just the law. If you look at moral judgments, even of people who are trying to engage in secular moral reasoning, things are much more complex. Some people (e.g., Thoreau) believe that paying taxes that fund unjust government policies is complicity; others disagree. Some people believe that a company’s buying products from suppliers who supposedly don’t provide employees with proper working conditions are complicit in the suppliers’ actions; others disagree. The list could go on. I don’t really see how the lines religious people draw as to complicity are any more absurd than the lines our own legal systems, and many of our secular fellow citizens, have drawn. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Saturday, September 05, 2015 12:25 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene If we take all of these absurd (to us) complicity claims seriously, then I still want to know why a religious pacifist is required to pay taxes that empirically finance killings chimes or anti-capital punishment adherents financing what Blackmun called the machinery of death. This really IS the "broccoli moment" for religious exercise buffs. Sandy Sent from my iPhone On Sep 5, 2015, at 2:19 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Marty doesn’t view her issuance of the licenses as authorization. He may well be right that Kentucky law doesn’t view it as authorization. But, as I understand it, Kim Davis claims that God would view her issuing such licenses with her name on them as authorization. If that is indeed Kim Davis’s claim, which it seems to be, then I don’t think it matters that Kentucky’s view is not Kim Davis’s view of God’s view. Now I agree that Davis is not entitled to the cessation of all issuance of marriage licenses in her county as an accommodation – that would unduly interfere with the state’s interest in providing marriage licenses to its citizens (and possibly the citizens’ federal constitutional right in having licenses issued by their county of residence, though that’s a somewhat more contested question). But if she continues to seek a just-not-with-my-name-on-them accommodation, which she indeed said in her stay application would be adequate, then the Kentucky RFRA would entitle her to that exemption. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, September 05, 2015 11:47 AM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene On Points 1 and 2 of Eugene's post, Davis's religious objection is not, as Eugene suggests, independent of whether her name serves to provide her "authorization" of a same-sex marriage; instead, she claims that it violates her religion because it in fact serves as an authorization. And thus, understandably, she cites Kentucky law for that proposition, because it's a question not of religious doctrine but of the legal affect of the appearance of her name. Her reading of that law is, I suggest, mistaken if not tendentious. And since her religious objection is predicated on a mistake of fact/law that civil authorities can assess, rather than on a disputed religious tenet, there's no substantial burden on her religious exercise. (Obviously, this same issue is now front and center in the contraception cases--most or all of the theories of complicity are, I've argued, based upon mistakes of law or fact that the courts need not accept.) The more important point for present purposes, however, is No. 3: And on that, I basically agree with Eugene that if there were a substantial burden here (but see above), then perhaps Kentucky law, viewed as a whole (including RFRA), could be read to provide that the issuance of a license by Deputy Clerk Mason, without Davis's name, is both permissible and results in a valid marriage license. The problem, however, is that Davis herself is strongly resisting this reading of Kentucky law. If she agreed with that reading, she would be thrilled, satisfied, with the current outcome -- Mason issuing licenses without Davis's name. Win-win! Indeed, before she was held in contempt she would not have prohibited Mason from doing just that--citing Kentucky RFRA--and thereby avoided prison. But her attorney instead insists that such licenses are invalid, and Davis contends that, under Kentucky law, Mason may not issue them. The outcome she is seeking is not for the court to rule that the issuance of such name-of-Davis-free licenses are lawful, but instead that there are to be no marriage licenses in Rowan County unless and until the Kentucky legislature amends Kentucky law to allow the omission of her name. (This all assumes that Kentucky law does, even apart from RFRA, require that Davis's name be on the license. For reasons I explain in my post, I have doubts whether that's even correct.) On Sat, Sep 5, 2015 at 1:50 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 1. I think the substantial burden question turns on whether an objector sincerely believes that what she is ordered to is against her religion. If she sincerely believes that distributing licenses with her name is, in God’s eyes, putting her name to an authorization of sinful conduct and therefore against God’s will, that’s what matters for substantial burden purposes – not that this doesn’t count as “authorization” for purposes of secular law or secular reason. 2. Davis’s stay petition, filed in the Supreme Court, says, among other things, “In this matter, even if the ‘desired goal’ is providing Plaintiffs with Kentucky marriage licenses in Rowan County, numerous less restrictive means are available to accomplish it without substantially burdening Davis’ religious freedom and conscience, such as ... Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.” http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf (PDF pp. 39-40). To be sure, we might not view the presence of her name as “personal nature of the authorization,” or the removal of her name as at all morally or religiously significant under our understanding of a rational theory of complicity in sin. But of course religious exemption rules apply even to people who don’t operate in ways that we think are rational or sensible. 3. It seems to me that the Kentucky Legislature has already potentially authorized religious exemptions from the statute that requires that marriage certificates and licenses bear the clerk’s name – as well as from virtually all other Kentucky statute. It did so by enacting the Kentucky RFRA. The very point of a RFRA (right or wrong) is that religious objectors shouldn’t have to wait for the Legislature to expressly amend statutes to include religious exemptions; instead, they could go to court to ask for an exemption, and the court could grant such an exemption if it concludes that the law substantially burdens religious practice and denying the exemption isn’t the least restrictive means of serving a compelling government interest. (The legislature could of course then overrule the court decision, if it thinks the court got the strict scrutiny or substantial burden analysis wrong, by expressly exempting the statute from the RFRA.) A simple analogy: Say someone objects to having a photograph of her face on a driver’s license, whether because she thinks that’s an impermissible graven image, or because she thinks she must always appear veiled in front of men who aren’t family members. A court applying a RFRA might be able to reject the exemption request on strict scrutiny grounds related to the need for visual identification as a means of protecting public safety. (Back in the Sherbert/Yoder era, courts considering this question were split, and the Court split 4-4 on it in Jensen v. Quaring.) But if a court concludes that not having a photo wouldn’t materially undermine public safety, and thus that strict scrutiny isn’t satisfied, it wouldn’t have to wait for the legislature to amend the statute that requires photographs on driver’s licenses: the state RFRA would itself authorize the court to require that the license be issued without the photograph, as a less restrictive means of serving the broader interest in making sure that drivers have at least some sort of license. Again, state RFRA has potentially authorized religious exemptions from the driver’s license photo requirement just as it has potentially authorized religious exemptions from peyote bans, the duty to serve as a juror, and so on. Likewise for the requirement that marriage licenses and certificates contain the county clerk’s name. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman Sent: Saturday, September 05, 2015 10:32 AM To: Cohen,David; Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> Subject: Re: What's happening in KY? -- my differences with Eugene Sorry, I had not previously seen Eugene's post on the VC: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/ Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to have her office (that is, her deputies) issue licenses without her name appearing on them. For reasons I've already offered, I don't think this is right, because I don't think there's a substantial burden on her religious exercise. But more to the point, and even if I'm wrong about the substantial burden point: Davis doesn't think the Kentucky RFRA permits that resolution, either. She is not trying to have her office issue licenses without her name--to the contrary, she has tried to forbid her deputies to issue licenses without her name, because she thinks that Kentucky law, as a whole (even including its RFRA), does not allow it (i.e., such licenses would not be valid). Her argument, instead, is that the Kentucky RFRA should afford her the authority to prohibit the office from issuing licenses altogether, because the Kentucky legislature could amend the marriage licensing law to provide that the Clerk's name can be omitted, i.e., because a lesser restrictive alternative law is in some sense available to the Commonwealth -- albeit one it has not yet enacted. On Sat, Sep 5, 2015 at 10:50 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: FWIW, my effort to make sense (?) of the mess; please let me know if I've gotten anything wrong (or if anyone has a transcript of the contempt hearing on Thursday, which might help explain things). Thanks http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: The reports I've seen (e.g., http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not make clear exactly what's happening, other than that Davis is incarcerated. 1. Is the County Executive Judge now issuing certificates and licenses (which might ironically eliminate the grounds for Davis's contempt incarceration . . . until she refuses to allow the documents to be issued to the next couple that appears)? 2. What was the deal the judge offered her, regarding her deputies issuing the documents? Did she refuse it because her name would continue to appear on the two lines? Or did the judge say that she could omit her name and she still refused? Thanks in advance for any info, or, better yet, links to actual documents. On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David <ds...@drexel.edu<mailto:ds...@drexel.edu>> wrote: Hi all - a mootness question for you. In the case of the KY clerk who was jailed today for refusing to comply with a district court order that required her to issue a marriage license to a gay couple (and stay denied from the 6th Circuit or Supremes), according to some news reports, now that she is in jail and not able to serve, state law allows a county’s executive judge to now issue licenses. So, presumably that will happen relatively quickly, and the plaintiffs will get their licenses. Is the case now moot and the clerk can get out of jail because she’d no longer be in contempt of a court order, since the case is vacated as moot? And the issue isn’t capable of repetition at this point for the plaintiffs, as they now have a license and can’t get another (until divorced, which may never happen). It certainly is capable of repetition for other people, but not these plaintiffs (and they haven’t filed a class action, to the best of my knowledge). We’ve been around this issue before, and to the best of my recollection, most people believe the cases say that the “capable of repetition” part has to be for the particular plaintiffs, not for someone else. In other words, is she in jail for an hour, maybe a day, and then back at it shortly to deny someone else a license (when that eventually happens) only to repeat the whole thing again? David David S. Cohen Professor of Law Thomas R. Kline School of Law Drexel University 3320 Market St. Philadelphia, PA 19104 Tel: 215.571.4714<tel:215.571.4714> drexel.edu<http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> | facebook<https://www.facebook.com/dsc250> | twitter<https://twitter.com/dsc250> Available NOW<http://www.livinginthecrosshairs.com/>: Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford) _______________________________________________ To post, send message to conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. 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